Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
James T. Boyd and Roy W. Stoddard, for Appellant.
M. B. Moore, for Respondent.
By the Court, McCarran, C. J.:
Some time during the year 1899 the appellant, Rick De Bernardi, and respondent, who in this action styles herself Constance E. Parker, took up life together in the city of San Francisco, State of California. Respondent was at that time, according to the record, the wife of one Parker. She was then conducting a place of business in the city of San Francisco. Appellant testifies that it was a rooming-house; respondent unblushingly declares it was a house of prostitution. Some time during the year 1900 respondent here secured a decree of divorce from her former husband, Parker. Following this, appellant contends and testifies that they agreed to live as man and wife. The agreement in this respect, if such there were, was after the granting of the interlocutory decree of divorce by the California court, and before respondent had secured her final decree from that tribunal.
In June, 1904, respondent came to Reno, Nevada, and, as far as we are able to learn from the record, immediately entered into the business of conducting a house of prostitution in the restricted district of that city under the name of Hazel Ward. In the year 1906 appellant disposed of his business in San Francisco and came to Reno, Nevada; and, from all that we can learn, the relationship that had theretofore existed between appellant and
respondent continued. Some time during the year 1906 appellant purchased, in his own name, a tract of land west of the city of Reno, and within the year following constructed on this tract a house which has since borne the name of Rick's Resort or Rick's Roadhouse. In the construction and furnishing of this house many thousands of dollars appear to have been expended. During the year 1908 appellant made a deed conveying the premises to Constance E. Parker.
This action was commenced in the lower court by respondent, under the name of Constance E. Parker, for the restitution of the premises and for damages for rental and the profits thereof.
Appellant here, defendant in the court below, by way of answer and defense, alleged that the parties were husband and wife, and that the plaintiff's name was Constance De Bernardi; that the deed from appellant to respondent was without consideration, and that the property in question was community property.
A verdict being rendered in favor of plaintiff and an order denying a new trial being entered, appeal is taken from the judgment and order.
Many assignments of error are submitted to this court for consideration; but, in view of the issues presented, we shall confine ourselves to the alleged error of the trial court in giving certain instructions to the jury. The instructions complained of read:
The court instructs the jury that marriage may be implied or inferred from cohabitation when the cohabitation is not illicit in its origin; general reputation among the acquaintances of the parties; their treatment of each other, their speaking of and addressing each other as husband and wife; acts, sayings and conduct which have a natural tendency to show the existence of the marriage relation.
You are instructed that cohabitation illicit in its origin is presumed to be of that character unless the contrary be proved, and cannot be transformed into matrimony by evidence which falls short of establishing the fact of an
actual contract of marriage. Such contract may be proved by circumstances, but they must be such as to exclude the inference or presumption that the former relation continued, and satisfactorily prove that it has been changed into that of actual matrimony by mutual consent.
You are further instructed that if you find from the evidence that the plaintiff had another husband living at the time the plaintiff and defendant commenced to cohabit and occupy the same room in the city of San Francisco, and that the relation of the plaintiff and defendant continued without any change in the condition or cohabitation of the parties, and that their declarations as to their being married and being husband and wife referred to their cohabitation in San Francisco and at a time when they could not lawfully marry, and not to any marriage contracted after the plaintiff's divorce from her former husband, Parker, then you should find that there was no marriage between plaintiff and defendant.
You are further instructed that unless you find that the marriage was in fact entered into and consummated between the plaintiff and the defendant in conformity with the provisions of the laws of the State of California, as hereinbefore defined, and proved in this case that the marriage testified to have existed between the plaintiff and defendant in the State of California, does not constitute a valid marriage and that no obligations can be held to exist between the plaintiff and defendant from such relations in that state, and that such relations were in fact illicit and meretricious and are presumed by law to have continued to be so illicit and meretricious throughout all the time plaintiff and defendant continued their relations to each other, unless the proof shows by a preponderance thereof and to your satisfaction that a valid marriage contract was made and entered into between the plaintiff and defendant in the State of Nevada.
1. We dwell especially upon what we deem to be the error in the last paragraph of the instructions quoted. In the first place, under the law of this state as it has been construed by this court it is not necessary, in order
to constitute a valid marriage, that any ceremony should be performed by any person or any ceremony had before any person. This court, in the case of State v. Zichfeld, 23 Nev. 304, set this question at rest and held that as the common law prevails in this state with reference to the marriage relation, that relation may be formed by words of present assent and without the interposition of any person lawfully authorized to solemnize marriage or to join persons in marriage.
It must be borne in mind that the defense interposed by appellant here in the court below was the marriage relation existing between himself and plaintiff, and his right to possession of the premises in question was based primarily upon the fact as alleged that the property was the result of the joint efforts of the parties. This court by this last instruction told the jury in effect that inasmuch as the relationship existing between the parties in the State of California prior to their taking up their abode in this state was illicit and meretricious, that relationship must be by the jury presumed to continue illicit and meretricious throughout all the time plaintiff and defendant continued to live together, unless by a preponderance of proof a valid marriage contract was actually made and actually entered into between the parties within this state. The force and effect of the language of the trial court, broad and sweeping as it is, was probably lost sight of by the court itself, otherwise it would not have been couched in such language. The illicit and meretricious nature of the relationship of the parties in the State of California must under this instruction be presumed by the jury to continue unless the proof established a valid marriage contract made and entered into between the plaintiff and the defendant in the State of Nevada. Indeed, if this instruction were given its full force and effectand the jury is presumed to give full force and effect to every instruction of lawa marriage ceremony performed between these parties in the most sacred tabernacle, by the highest prelate of some constituted church, under license issued in conformity to
statute, would be unavailing, if perchance that ceremony were performed in a state other than Nevada. Undoubtedly this was not the intention of the trial court, but the instruction was given to the jury, and we have no right to say that the jury looked upon it in any other sense than that conveyed by the specific language employed.
2. The instruction given by the trial court in this instance to our mind swept away the force and effect of all the evidence in this case going to establish a marital relation existing between the parties. But it did more than that. It struck down that principle of law of which the jury should have been advised by proper instruction, and which principle seems to have been deep-seated in the minds of all writers and jurists when dealing with matrimonial relations from very early times in the law's making. Semper praesumitur pro matrimonio was expressive of a doctrine in the early writings of the common law. Indeed, this expression we find made use of in all the ancient discussions bearing upon marriage relation to such an extent that it gained the dignity of being termed a maxim. Every intendment of the law leans to matrimony, says Mr. Bishop in his work on Marriage and Divorce. Continuing, the learned author observes:
When a marriage has been shown in evidence, whether regular or irregular, and whatever the form or the proofs, the law raises a strong presumption of its legalitynot only casting the burden of proof on the party objection, but requiring him throughout, in every particular, to make plain, against the constant pressure of this presumption, the truth of law and fact that it is illegal and void. So that this issue cannot be tried like the ordinary ones which are independent of this special presumption. (1 Bishop on Marriage, Divorce and Separation, 957.)
This prescription of the law by Mr. Bishop is, as we will later have occasion to cite, supported by eminent writers on the subject from the pioneer days of the common law to the present time.
It is the contention of respondent in the case at bar
that, in view of the relationship existing between the parties in the State of California prior to their coming into this state, this instruction was properly given. It is needless to observe that the relationship for the parties in California, at least prior to the time at which the respondent here secured her final decree of dissolution from her former husband, was meretricious and illicit. Respondent contends that not only in this condition presented by the record, but the relationship existing between the parties is made further illicit by reason of the habits and life of the parties themselves, in this: That respondent, while living in the State of California, and indeed during her residence in Nevada, was for a part of the time, at least, the mistress in a house of prostitution, and that the relationship existing between the parties was nothing more than that usually existing between a prostitute and her paramour.
Whatever there may be of merit in the contention of respondent, there is another phase to the case as presented by the record, and one which appellant here was entitled to have fully considered by the jury under proper instructions. The cohabitation or relationship entered by the parties in the State of California was, according to the testimony of appellant, that of husband and wife. He says they there agreed to live together as such. At that time he was engaged in the hack business in San Francisco, and she conducted a rooming-house. Whatever the relationship may have been in California, it was continued after the parties came to this state. The impediment which prevented a legal marriage between the parties in California was removed after the final decree of divorce was granted to respondent in California and after they had taken up their abode in this jurisdiction.
During their cohabitation in this state, certain things appear to have transpired between the parties which to our mind went a long ways toward establishing the marriage relation, and which, were it not for the erroneous instruction, the jury would undoubtedly have regarded as
constituting marriage between the parties. The parties here lived together at and in the premises here in question from 1907 until 1911. A daughter of respondent lived with them during a part, if not all, of that time. During a part of the time, an adopted infant, Roy De Bernardi, was maintained and cared for by the parties as their own child, at and in the premises in question. On September, 26, 1907, appellant and respondent, as man and wife, executed an instrument of mortgage to the Washoe County Bank, of Reno, Nevada, by which instrument the very premises her in question were pledged as security to the bank for a loan of $7,500, and to which instruments the respondent here signed her name Constance De Bernardi; and the notarial acknowledgment to the instrument recites that:
On the 26th day of September, in the year one thousand nine hundred and seven, * * * personally appeared Rick De Bernardi and Constance De Bernardi, his wife, known to me to be the persons described in and who executed the foregoing instrument, who acknowledged to me that they each executed the same freely and voluntarily and for the uses and purposes therein mentioned; and the said Constance De Bernardi was by me made acquainted with the contents of said conveyance, and she acknowledged to me, on an examination apart from and without the hearing of her husband, that she executed the same freely and voluntarily, without fear or compulsion or undue influence of her said husband, and that she does not wish to retract the execution of the same.
On January 4, 1908, the parties her executed, as man and wife, another mortgage, to Frank Bros. Company, a corporation of Washoe County, by which instrument they pledged certain bar fixtures and appliances in the saloon known and called Rick's Resort, and other personal property at or about the same place, to which instrument of mortgage the respondent again signed her name Constance De Bernardi. It appears from the record that on November 30, 1909, and while the parties were
living together at Rick's Roadhouse, or Rick's Resort, respondent and appellant instituted proceedings in the district court of Washoe County for the adoption of a child. An excerpt from the petition of the parties in the adoption proceedings is found in the record and reads as follows:
That your petitioners are anxious and desirous of adopting the child, Edwin Baker Freeman, as their own, to have said child sustain toward each other the legal relation of parent and child, and said child to have all the rights, including the right of maintenance, protection, education and inheritance, and be subject to all the duties of that relation, and that the natural parents of said child be relieved of all parental duties toward and all responsibilities for said child and have no right over him.
And another excerpt from the same instrument reads:
We promise and agree to properly raise, educate, maintain and care for the said Edwin Baker Freeman as our own child, and to always keep him in the best of surroundings and the best of associations and to comply with the adoption laws of the State of Nevada in each and every respect.
To this instrument we find respondent and appellant signing their respective names Rick De Bernardi ...